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civil_laws:sections:res-judicata

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Res Judicata under CPC

Section 11 of the Civil Procedure Code, 1908

No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in former suit between same parties, or between parties under whom they or any of them claim , litigating under the same title , in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised , and has been heard and finally decided by such court.

Explanation I - The expression “former suit” shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

Explanation II - For the Purpose of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such court.

Explanation III - The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly by the other.

Explanation IV - Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation V - Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused.

Explanation VI - Where persons litigate bona fide in respect of a public right or a private right claimed in common for themselves and others, all person interested in such right shall, for the purposes of this section, be deemed to claim under the person so litigating.

Explanation VII1) - The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue of former suit shall be constructed as references, respectively, to a proceeding and a former proceeding for the execution of that decree.

Explanation VIII2) - An issue heard and finally decide by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit which such issue has subsequently raised.

The present section deals with the doctrine of res judicata. The leading case on the subject is the Duchess of Kingston's case. Contrasting the present section with section 10, it may be said that the rule in section 10 relates to res sub judice,that is, a matter which is pending judicial inquiry ; while the rule in the present section relates to res judicata, that is, a matter adjudicated upon or a matter on which judgment has been pronounced. Section 10 bars the trial of a suit in which the matter directly and substantially in issue is pending adjudication in a previous suit. The present section bars the trial of a suit or an issue in which the matter directly and substantially in issue has already been adjudicated upon in a previous suit.

If A sues B for damages for breach of a contract, and the suit is decided against A, no Court will try a subsequent suit by A against B for damages for breach of the same contract. This is the doctrine of res judicata stated in its simplest form. The question of A’s right to claim damages from B having been decided in the previous suit, it becomes res judicata and it cannot therefore be retried in another suit. It would be useless and vexatious to subject B to another suit for the same cause. Moreover, public policy requires that there should be an end of litigation. The rule of res judicata may thus be put upon two grounds the one, the hardship of the individual that he should be vexed twice for the same cause, and the other, public policy, that it is in the interest of the State that there should be an end of litigation. Looking at the matter from the side of jurisprudence it may be said, that every suit must be sustained by a cause of action, and there is no cause of action to sustain the second suit of A, it being merged in the judgment in the first. For what is A's cause of action in the subsequent suit? It is that he has sustained damages by reason of failure on the part of B to perform a contract with him. But this cause of action is the same as that in the first suit, and there being a judgment pronounced upon it in that suit, it is merged in that judgment. The cause of action having merged in the judgment, it is extinct in the eye of the law, and incapable of sustaining the subsequent suit. And the doctrine of res judicata has been carried so far as to hold that the plea of res judicata, will prevail even where the result of giving effect to it will be to sanction what is prohibited by statute.

The doctrine contains the rule of conclusiveness of the judgment which is based partly on the maxim of Roman jurisprudence “interest reipublicae ut sit finis litium” (it concerns the State that there be an end to law suits) and partly on the maxim “nemo debet bis vexari pro uno et eadem causa” (no man should be vexed twice over for the same cause). 3)

Meaning

This Section states that no court shall try any suit or issue in which the matter is directly and substantially in issue of a former suit which has been decided or finally herd by a competent court and the same was between the same parties, or between parties under whom they or any them claim to be litigating. Otherwise it is simply knowns as Res Judicata, which is a Latin word meaning matter already decided.

Scope

The apex Court in Satyadhyan Ghosal & Ors. v. Smt. Deorajin Debi & Anr4) explained the scope of principle of res-judicata observing as under:

The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation, When a matter - whether on a question of fact or a question of law - has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in S. 11 of the Code of Civil Procedure; but even where S. 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct.”

Principle

  • The principle that is discussed in this Section is “no one shall be vexed twice” for the same cause of action. The principle is based on equity, justice and good conscience. This principle is mainly to avoid endless and continuing litigations. It pertinent to note that, it is only the decision which operates as res judicata and not the reasons given for the decision.
  • The principle of res judicata is not affected by a subsequent contrary view taken by a superior court in any other case.
  • The principle of res judicata is not applicable where signs of fraud or collusion are transparent or apparent from the facts on record.
  • An order without jurisdiction cannot constitute res judicata and thus the principles cannot be applied.
  • A successor-in-title would be bound by the result of the earlier proceeding in a subsequent proceeding to the extent the predecessor in title would have been bound. Thus, the principle of res judicata can be applied in such cases to avoid continuing litigations.

In Chandrabhai K.K. Bhoti v. Narayan Prabhu5) the Apex Court held that an order passed without any jurisdiction cannot constitute res judicata, thus it does not come under the ambit of section 11.

In Swamy Atmananda v. Sri. Ramakrishna Tapovanam6), Supreme court elucidated that the doctrine of res judicata is conceived not only in larger public interest which requires that all litigation, sooner than later, should come to an end but it also founded on equity, justice and good conscience.

Conditions of Res Judicata

It is not every matter decided in a former suit that can be pleaded as res judicata in a subsequent suit. To constitute a matter res judicata the following conditions must concur

  1. The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually (Explanation III) or constructively (Explantion IV) in the former suit.
  2. The former suit must have been a suit between the same parties or between parties under whom they or any of them claim. Explanation VI is to be read with this Condition.
  3. The parties as aforesaid must have litigated under the same title in the former suit.
  4. The Court which decided the former suit must have been a Court competent to try the subsequent suit or the suit in which such issue is subsequently raised. Explanation II is to bo read with this Condition.
  5. The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit. Explanation V is to be read with this Condition.

Matter in issue and herein of pro forma defendant

It is only a matter directly and substantially in issue that can constitute res judicata. In other words, to constitute a matter res judicata, it must have been, in the first place, in issue in the former suit ; and, in the next place, it must have been in issue in that suit directly and substantially. If a matter was not in issue at all in the former suit, it is clear that it could not constitute res judicata in the subsequent suit. If A sues B for damages for breach of a contract, and B denies the contract, the factum of the contract is in issue between A and B. This is an illustration of the case in which a matter is in issue between the parties to a suit.

There is one class of cases in which a matter put in issue by a plaintiff in a suit can never be in issue as between him and a defendant in that suit. Those are cases in which there are two or more defendants, and there is no relief sought by the plaintiff against a particular defendant or set of defendants. A defendant against whom no relief is claimed is called pro forma defendant ; he is merely a formal party to the suit. For it must be remembered that a person may be joined as defendant in a suit, though no relief is claimed against him, if his presence before the Court is necessary to enable the Court effectually and completely to adjudicate upon the question involved in the suit7).

A, claiming to be entitled to possession of a certain tank as tenant of X, sues B to recover possession thereof from him. X is joined as defendant, but there is no relief claimed against him. The suit is dismissed on a finding that B, and not X, is the owner of the tank. Subsequently X sues B to recover possession of the tank. B contends that the suit ought to be dismissed, on the ground that the matter of the ownership of the tank was in issue in the former suit, and it was decided in his favour ; in other words, that the suit is barred as res judicata. The suit is not barred as res judicata for the matter of the ownership of the tank in the former suit was in issue between A and B, and not between X and B, X being merely a formal party to that suit.

Matter directly and substantially in issue and Explanation III

It is not enough to constitute a matter res judicata that it was in issue in the former suit. It is further necessary that it must have been in issue directly and substantially. A matter cannot be said to have been “directly and substantially” in issue in a suit, unless it was alleged by one party and denied or admittedly either expressly or by necessary implication, by the other. It is not enough that the matter was alleged by one party. At the same time it is not necessary to constitute a matter “directly and substantially“ in issue that a distinct issue should have been raised upon it; it is sufficient if the matter was in issue in substance. A, claiming as the adopted son of X, sues B to recover possession of certain property forming part of the estate of X. Here the question of adoption would not be a matter “directly and substantially” in issue, unless B either admitted or denial the adoption. For B might neither admit nor deny the adoption, and might resist A’s claim on the ground of adverse possession, or on the ground that he is entitled to the property as a devisee under the will of X. In that case, the question of adoption would not be a matter “directly and substantially ” in issue.

Matter collaterally or incidentally in issue

Every suit must involve a matter “directly and substantially” in issue. It may also involve a matter “collaterally or incidentally ” in issue. To constitute a matter res judicata it is necessary that it must be in issue“ directly and substantially” in the suit under trial, and that it must have been in issue also “directly and substantially” as distinguished from “collaterally or incidentally” in a former suit.

All matters involved in a suit may be “directly and substantially ” in issue, but they cannot all be collaterally or incidentally in issue. A collateral or incidental issue is one that is ancillary to a direct and substantive issue ; the former is an auxiliary issue, the latter the principal issue. When we speak of a matter as being “collaterally or incidentally” in issue in a suit, it is understood that there is another matter which is “directly and substantially ” in issue in that suit. A matter “collaterally or incidentally” in issue is ancillary or auxiliary to a matter “directly and substantially” in issue.

Distinction between matter “directly and substantially" in issue and matter “collaterally or incidentally" in issue

The leading case on the subject is Barrs vs Jackson. Every suit must involve a matter or matters in respect of which relief is claimed by the plaintiff. It may also involve a matter or matters which, though there is no relief claimed in respect of them, are brought in issue for the purpose of deciding on the matter or matters in respect of which relief is claimed.

Matter directly and substantially in issue

Every matter in respect of which relief is claimed in a suit is necessarily a matter “directly and substantially” in issue.

Illustrations

  1. A sues B for the rent due for the year 1907. The defence is that no rent is due. Here the claim for rent is the matter in respect of which relief is claimed. This therefore is a matter “directly and substantially ” in issue.
  2. A sues B for a declaration of title to certain lands, and for the rent of those lands. B denies A's title to the lands, and contends that no rent is due. Here there are two matters in respect of which relief is claimed, namely, the matter of title, and the claim for rent. Both these are matters “directly and substantially ” in issue.

Matter collaterally or incidentally in issue

A matter is respect of which no relief is claimed, but which is put in issue for the purpose of enabling the Court to adjudicate upon a matter in respect of which relief is claimed, may be either “directly and substantially” in issue or it may be in issue “collaterally or incidentally.” It will he a matter “directly and substantially” in issue, if the parties to the suit and the Court have dealt with the matter as there was a relief claimed in respect of that matter also ; that is to say, though the matter was, in the first instance, brought in issue as auxiliary or incidental to the matter in respect of which relief is claimed, it is dealt with and decided as if it formed a direct and principal issue in the suit. If the matter has not been dealt with by the parties to the suit and the Court in that way it will be a matter “ collaterally or incidentally ” in issue.

Examination of pleadings and judgment

Whether a matter has been dealt with in manner aforesaid is to be determined by a reference to the plaint, the written statement, the issues, and the judgment. The decree may also be referred to, but it is not enough to refer to the decree without the judgment, for a decree states merely how a suit is disposed of, and it is in the judgment that the findings on the issues arc recorded. The judgment is admissible under s. 40 of the Evidence Act.8)

In Sheoparsan v. Bamnandan, the Judicial Committee, referring to the rule of res judicata, observed that “the application of the rule by the Courts in India should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law.”

The above topic considered with reference to reported decisions

We now turn to cases in which the distinction between a matter “directly and substantially” in issue and a matter “ collaterally or incidentally ” in issue arises most frequently. Those cases may be divided into the following three classes :

  1. Where the first suit is for rent, and the subsequent suit is for title.
  2. Where both suits are for rent or other recurring liability.
  3. Where both suits relate to the rate of rent or the area for which rent is payable.

We shall deal with these three classes of cases in order.

Suit for rent, subsequent suit for title

In this class of cases it is clear that the subsequent suit being one for title, the question of title is a matter “directly and substantially” in issue in that suit. Whichever party therefore raises the plea of res judicata must show that the question of title was also “directly and substantially ” in issue in the former suit, that is, in the previously decided suit. If the question of title has been in issue in its entirety in the former suit, it will be said to have been “ directly and substantially ” in issue in that suit. But if the issue in the former suit does not cover the entire question of title, in other words, if it falls short of going to the very root of the title, and is confined only to some of the incidents of title, the question of title will be said to have been “collaterally or incidentally” in issue in the former suit.

Illustration A

A, claiming to be the chela and heir of a deceased mohunt, sues B (a tenant) for the rent of certain lands forming part of the estate of the mohunt. C claims that he, and not A, is the chela and heir of the deceased, and that he is therefore entitled to the rent. C is thereupon added as a defendant to the suit 9).

The issues raised are

  1. Whether A or O is the chela and heir of the mohunt?
  2. Whether any and what rent is due by B?

The Court finds that A is the chela and heir of the mohunt. It also finds that there is a sum of Rs. 2,500 due by B for rent and it decrees A’s claim.

Subsequently C sues A for a declaration that he is the chela and heir of the mohunt and claims that he is as such entitled to the whole of the property left by the mohunt.

A contends that the question as to who is the chela and heir of the deceased is res judicata. The question is res judicata, and the suit ought to be dismissed, for though the former suit was for rent, the entire question of title to the property of the deceased was directly and substantially in issue in that suit and it was decided against C.10)

Note: In this and the following illustration it is assumed that the other conditions of res judicata are present.

Illustration B

A Hindu dies leaving a widow and a brother, C. The widow sues B (a tenant) for the rent of certain property alleging that it was the separate property of her deceased husband. C claims to be entitled to the rent on the ground that it was the joint property of himself and his deceased brother and that he became entitled to it by survivorship. C is thereupon added as a defendant to the suit. The issues are

  1. Whether the deceased alone received the whole rent of the property in his lifetime, or whether the rent was received by him jointly with C?
  2. Whether any and what rent is due by B?

The Court finds on the first issue that the deceased alone received the whole rent in his lifetime. (The finding on the second issue is unnecessary for our present purposes).

Subsequently C sues the widow for a declaration that he and his brother were joint, and claims the said property by right of survivorship. The question whether the deceased and C were joint or separate is not res judicata, for it was not “directly and substantially” in issue in the former suit. It was in issue in that suit only “collaterally or incidentally” for it will be seen on referring to the first issue in that suit that it did not cover the entire question of C’s title, but related merely to the joint or separate receipt of rent.11)

Both suits for rent or other recurring liability

The same principles that apply to the preceding class of cases also apply here. Thus where A sues B for rent due for a particular period, and the defence is that A has no title to the land of which the rent is claimed, then, if a direct issue is raised and decided on the question of title the decision will operate as res judicata in a subsequent suit by A against B for the rent for a subsequent period either of the same or other property held under the same title. But if there is no direct issue raised on the question of title, and the finding falls short of going to the very root of the title upon which the claim for rent is based, it will not have the effect of res judicata. If the question of title is gone into in the previous suit, not as if the right of rent were sought to be established for one particular year but once for all, it will be said to have been directly and substantially in issue. But if the question of title is gone into in the previous suit not as if the right of rent were sought to be established once for all, but for one particular year, it will be said to have been in issue collaterally or incidentally. These principles also apply in the case of other recurring liability, such as malikana, maintenance, interest, annuity etc.

Illustration

A sues B for rent due for the year 1903. The defence is that the land is rent-free. An issue is raised, “ whether the land is rent-free”. The Court finds that the land is rent-free, and A’s suit is dismissed.

Subsequently A sues B, claiming rent for the year 1904. B again sets up the same defence, namely, that the land is rent-free. Here the question of A’s right to recover the rent having been directly and substantially in issue in the previous suit the suit for the rent for 1904 is barred as res judicata12)

It may here be observed that each year’s rent is in itself a separate and entire cause of action, and where a suit is brought for the rent due for a particular year, a judgment obtained in that suit, whatever the defence might be, would seem only to extend to the subject matter of the suit and hence the landlord is at liberty to bring another suit for the next year's rent and the tenant is at liberty to set up to that suit any defence he thinks proper.

The above proposition, however, is subject to this, and here comes in the doctrine of res judicata, that neither party is at liberty to reopen in the suit for rent for the next year any question that was substantially and necessarily tried and determined between them in the suit for rent for the previous year. For the essence of the doctrine of res judicata is that where a material issue has been tried and determined between the same parties in a proper suit and in a competent Court as to the status of one of them in relation to the other or as to a right or title claimed by either of them against the other, it cannot again be tried in another suit between them. As regards maintenance, it is to be noted that a decree for maintenance at a particular rate is no bar to a subsequent suit for maintenance at an enhanced rate on the ground of altered circumstances; for the rate of maintenance is a variable quantity changing from time to time according to the circumstances of the parties affected by the decree.

Rate of rent or area for which rent is payable

In this class of cases also both the suits are for rent, the first suit being for rent for a particular period, and the second for rent for a subsequent period. The matter which is pleaded as res judicata is not the plaintiff’s title to the land of which the rent is claimed, but the rate of rent or the area for which rent is payable. If the Court in the first suit tries and determines the issue, “what is the proper rate of rent,” or “what is the proper area for which rent is payable” it is clear that the issue relating from its very form not to the rent for a particular period but to the rent payable for the full term of the lease, the question of the rate or of the area as the case may be will be res judicata in all subsequent suits for rent for the remaining period of the lease.

Ex parte decree

In the case of a suit in which a decree is passed ex parte13) the only matter that can be “directly and substantially” in issue is the matter in respect of which relief has been claimed by the plaintiff in the plaint. A matter in respect of which no relief is claimed can never be “directly and substantially” in issue in a suit in which a decree is passed ex parte, though the Court may have gone out of its way and declared the plaintiff to be entitled to relief in respect of such matter.

Illustration. A sues B to recover Rs. 600, being the rent due for the year 1906 at the rate of Rs.2 per square yard. A does not pray for a declaration in the suit that the rate of rent is Rs. 2 per square yard. B does not appear, and a decree ex parte is passed against him for Rs. 500. Subsequently A sues B for rent due for the year 1907 also at the same rate. B appears at the hearing, and contends that the rate is Re.1 per square yard. B is not precluded from raising that contention, for the question of rate cannot be said to have been “directly and substantially” in issue between A and B in the former suit. It cannot therefore be res judicata. Even if the Court in the former suit had declared that, A was entitled to rent at the rate of Rs. 2 per square yard, the question of rate would not be rea judicata, for A had not asked for a declaration in that suit in respect of the rate of rent, A's claim in the former suit was merely for the arrears of rent, Rs. 500, and the decree in that suit has no greater effect than evidence that Rs, 500 was due when the decree was passed. Had A in the former suit also prayed for a declaration in respect of the rate of rent as part of the substantive relief, and had the Court then declared that the rate of rent was Rs.2, the question of rate would have been res judicata though the decree was passed ex parte,for it would then have been a matter “directly and substantially ” in issue, every matter in respect of which relief is claimed in a suit being a matter “directly and substantially“ in issue.14).

Decree for injunction and res judicata

A sues B for an injunction restraining B from doing certain acts. The injunction is granted. B repeats the acts complained of in the suit. A again sues B for an injunction. The suit is barred as res judicata for the relief claimed is covered by the injunction granted in the former suit, and A’s remedy is to proceed against B for contempt of the Court’s order in that suit.15)

Decree for restitution of conjugal rights and res judicata

A sues B, his wife, for restitution of conjugal rights. Restitution is granted, and B goes and lives with A (that is to say, the decree is satisfied). B again leaves A , and A again sues B for the same relief. The suit is not barred as res judicata.16) The distinction between this and the preceding case is that while in the suit for injunction the defendant is for ever restrained from doing the acts complained of, the wife cannot be directed in a suit for restitution of conjugal rights to live with her husband for the rest of her life; for many things may occur entitling her to leave him, for example, gross cruelty.

Decree conditional on payment of money

A decree in a former suit for possession of property conditional on the payment of a sum of money to the defendant is no bar to a subsequent suit for possession after the expiration of the period within which he might have obtained possession by execution of the decree.

It is the matter directly and substantially in issue in a suit, and not the subject-matter thereof, that forms the test of res judicata.

Hence it follows that though the subject-matter of the second suit may be entirely different from the subject-matter of the first, yet if a matter which is directly and substantially in issue in the subsequent suit was also directly and substantially in issue in the previous suit, the decision on the matter so in issue in the previous suit will operate as res judicata so as to bar the trial of that matter in the subsequent suit. Thus if A claims certain property as the adopted son of X, and the defendant denies the adoption, a finding in A’s favour on the issue as to adoption will be binding on the defendant as res judicata in a subsequent suit by A against the same defendant to recover another property claimed under the same title. It is not open to the defendant to contend that the parties claimed in the two suits being different, the decision on the question ot A’s adoption in the first suit cannot operate as rea judicata in the second. Similarly, in the illustration cited underclass B of rent-suits it is no answer to the plea of res judicata that the subject matters of the two suits are different. The reason is that the matter directly and substantially in issue in both the suits is the same, namely, whether the particular land of which the rent is claimed is rent-free, and the decision therefore on that issue in the first suit operates as res judicata in the subsequent suit. But the decision cannot apply to other lands held by B under A, unless they form part of the same tenure. From the same fundamental principle that the matter directly and substantially in issue, and not the subject-matter, constitutes the test of res judicata, it also follows that where a matter directly and substantially in issue in a suit is not the same as that in a previously decided suit, the trial of that matter will not be barred as res judicata, though the subject-matter of the two suits may be the same. Where both the matter directly and substantially in issue and the subject-matter are the same in both the suits, the matter in issue will be res judicata, not because of the identity of the subject-matter, but because of the identity of the matter directly and substantially in issue. And where the matter directly and substantially in issue and the subject-matter are both different in tho two suits, the matter in issue will not be res judicata, not because the subject-matters are different, but because the matters directly and substantially in issue in tho two suits are different. A Mahomedan dies leaving a widow and other heirs. After his death some of his heirs sue the widow for the recovery ot their share. The widow’s defence is that her dower debt is not paid and she is entitled to remain in possession until the debt is paid. The widow's claim is decreed on payment by the plaintiffs to her of Rs. 3,900, the proportionate amount of dower payable by them. The sum adjudged to be due is not paid, and the suit is in consequence dismissed. This does not bar a subsequent suit by the same heirs for the recovery of their share on payment to the widow of the amount that might then be found payable to her for her dower. The decree in the first suit operates as res judicata only as regards the amount of dower, the rate of interest, and the sum payable by the plaintiffs before obtaining possession up to the date of the decree. But it does not operate as res judicata on the question of the plaintiffs right to inherit the property of the deceased. The decree in the first suit did not by the dismissal of the suit extinguish the plaintiffs right to inherit the estate of the deceased.

Former suit

Explanation I. We have said above that a decision in former suit may operate as res judicata in a subsequent suit. What is the meaning of “ former suit”? Does it refer to the suit that has been first instituted or to the suit that has been first decided ? The answer is that it refers to the suit that has been first decided; in other words, “ former suit ” means a previously decided suit. The result therefore is that if suit No. 2 is instituted after the date of the institution of suit No. 1, and suit No. 2 is decided first, the decision in suit No. 2 may operate as res judicata in suit No. 1. The same rule applies to appeals. Explanation 1, which is new, does no more than give effect to these decisions.

A sues B for possession of certain premises alleged to have been let to B as a monthly tenant. B sues A for a declaration that he holds the premises under a lease from A of which two years are yet to expire. Both the suits are heard together, and only one judgment is delivered in both, the finding of the Court being that B held the premises not under a lease as alleged by him, but as a monthly tenant. A decree is passed in A's suit directing B to deliver up possession, and a separate decree is passed in B's suit dismissing the suit with costs. B does not appeal from the decree passed against him in A's suit, but prefers an appeal from the decree passed against him in his own suit. A contends that the appeal is barred as res judicata, stating as a reason that no appeal having been preferred by B within the period allowed by law from the decision in his (A’s) suit that B hold the premises as a monthly tenant, the decision became final, and that decision having been given in a “former suit” the matter could not be re-tried in the appeal from the decision in B's suit. Does the decree passed in A’s suit operate as res judicata so as to preclude the appellate Court from hearing the appeal preferred by B from the decree passed in his (B's) suit? No, according to the Calcutta and Madras High Courts, the reason given being that there being but one judgment in both the suits, neither suit can be said to be a “ former suit ” in relation to the other. Yes, according to rulings of the Allahabad High Court, the reason given being that if the appeal were heard and the appellate Court reversed the decree of the lower Court, there would be two inconsistent decrees on the files of the Court, the one in A's suit in A’s favour, and the other in B's suit in B's favour, in respect of the same matter in issue, and this would cause a complete impasse in execution proceedings. The result is that according to the Allahabad High Court B must prefer an appeal from each decree if he wishes to avoid the bar of res judicata.

Suit

There is no definition of tho word suit probably because it is not possible to frame one which will satisfactorily survive every test. But on the other hand it is not difficult to decide in the vast majority of cases whether a proceeding is in fact a suit or whether it is merely a summary or subsidiary application. In the case of Venkatachandrappa v. Venkatarama, where the proceeding was held not to have been a suit, it was said, “suit is a very comprehensive term. It includes any proceeding in a court of justice by which a party pursues the remedy which the law gives him. If a right is litigated between parties in a court of justice, the proceeding by which the decision of the Court is sought is a suit.”

The matter of which the trial is barred under this section must have been heard and decided in a former suit. Proceedings under the Land Acquisition Act, 1894, differ considerably from a regular suit ; therefore, a decision of the Court under that Act with respect to the apportionment of compensation awarded in respect of property acquired under the Act does not operate as res judicata in a subsequent suit relating to the question of title to other properties, though held under the same title. But a proceeding under s. 22 of the Provincial Insolvency Act, 1907, for a declaration of title and for possession of property attached by the Insolvency Court as being property of the insolvent is a ‘suit’, and the decision in such proceeding is a bar to a subsequent suit by the applicant in a civil Court for the same relief.

Constructive Res Judicata

Matter which might and ought to have been made ground of attack or defence

A matter directly and substantially in issue may be either “ actually ” in issue or it may be in issue “ constructively.” In all the cases cited above, where a matter was held to have been in issue directly and substantially, it was “actually ” in issue directly and substantially, for it was actually alleged by one party and denied by the other. It often happens that a matter which might and ought to have been made ground of attack by the plaintiff to substantiate the relief claimed by him in the suit is not alleged by him as a ground of attack ; and also that a matter which might and ought to have been made ground of defence by the defendant is not set up as a ground of defence. A matter which might and ought to have been made ground of attack or defence in the former suit, but which has not been alleged as a ground of attack of defence, will be deemed to have been a matter directly and substantially in issue in such suit.17) That is to say, though it has not been actually in issue directly and substantially, it will be regarded as having been constructively in issue directly and substantially. This section draws no distinction between the claim that was actually made in a suit, and the claim that might and ought to have been made. Where a matter has been actually in issue, it is necessary, to constitute res judicata that it should have been heard and finally decided. But where a matter has been constructively in issue, it could not, from the very nature of the case, be heard and decided ; and it will be deemed to have been heard and decided against the party omitting to allege it. This is in accordance with the view of the section taken by the High Courts of Allahabad and Bombay. On the other hand it has been held by the Calcutta High Court that though a matter, which might and ought to have been made ground of attack or defence should be deemed as provided by Explanation IV, to have been directly and substantially in issue, yet it could not be deemed to have been “heard and finally decided,” as there was nothing in Explanation IV to suggest that such matter should also be deemed to have been heard and finally decided. The view thus expressed does not seem to be sound law. It attaches greater importance to form than to substance. Its correctness was doubted in a later decision of the same Court, and the Chief Court of the Punjab has expressly dissented from it.

Tata Industries Ltd. v. Grasim Industries Ltd.18) This case deals with jurisdiction to appoint the arbitrator u/s 11(6) of Arbitration and Conciliation Act, 1996. Supreme Court rejected the argument raised before the High Court and held – Question of locus standi not having been raised before the High Court did not survive – it amounted to an abandonment of the issue and cannot be raised before the Supreme Court.

In Fatima Bibi Ahmed Patel v. State of Gujarat19) the Hon'ble Supreme Court held that the principle analogous to Res Judicata or constructive Res judicata does not apply to criminal cases. Where the entire proceedings have been initiated illegally and without jurisdiction, in such a case even the principle of Res judicata (wherever applicable) would not apply…

Illustrations.

  1. X, a Hindu, dies leaving a widow. The widow makes a gift of certain property belonging to her husband to her brother, B. After the death of the widow, A alleging that he and X were members of a joint family sues B for a declaration that he is entitled to the property by right of survivorship. The Court finds that A and X were separate, and A’s suit is dismissed. Subsequently A sues B for the recovery of tho same property, alleging that as the nearest reversionary heir of X, he became entitled to the property on the death of the widow, and that the alienation made by her in favour of B was not binding upon him. The suit is barred as res judicata. A might and ought to have set up the title by heirship as a ground of attack in the former suit. It will there-fore be deemed to have been “ directly and substantially in issue ” in that suit, and it will also be deemed to have been “ heard and finally decided ” aginst A. Guddapa v. Tirkappa20), dissented from in Ramaswami v. Vythinatha21), a case on different facts altogether. The grounds of dissent, it is submitted, are not satisfactory. See also Masilamania v. Thiruvengadam22), being ill. (3) below.
  2. A, a Hindu, dies leaving a widow and a brother, B. The widow sues B for recovery of certain property, alleging that it was the self-acquired property of her husband, and that a will alleged to have been executed by her husband and relied on by B is a forgery. B alleges that the property was joint family property, and that on the death of A he became entitled thereto by right of survivorship but he does not claim any title to the property under the will. The Court finds that the property was the self-acquired property of A, and decrees the widow’s claim. Subsequently B sues the widow to recover the same property from her, now claiming the same as a devisee, under A’s will. The suit is barred as res judicata. B might and ought to have set up the claim under the will as a ground, of defence in the former suit. “When a plaintiff claims an estate, and defendant, being in possession, resists that claim, he is bound to resist it upon all the grounds that it is possible for him according to his knowledge then to bring forward”.23)
  3. A sues B to recover certain property belonging to the estate of C, alleging that his father had been adopted by C’s brother, D, to whom the property descended on C’s death. The suit is dismissed on the ground that the adoption is not proved. A then sues B to recover the same property claiming it as C’s bandhu. The suit is barred as res judicata. A ought to have in the first suit claimed the property in the alternative as C’s bandhu.24)

Test

The question whether a matter might have been made a ground of attack or defence in the former suit rarely presents any difficulty. Whether it ought to have been made a ground of attack or defence depends on the particular facts of each case. As a general rule we may say that if a matter could have been set up as a ground of attack or defence in the former suit, and if its introduction into that suit was necessary for a complete and final decision of the right claimed by the plaintiff therein, it will be deemed to be a matter which ought to have been made a ground of attack or defence in that suit, unless the matters in that and the subsequent suit are so dissimilar that their union might lead to confusion. Thus in ill (1) above the title by heirship could have been made a ground of attack in the alternative in the first suit; it was not forbidden by any rule of pleading ; moreover, it was necessary for the complete and final disposal of all questions as to A’s right to tho property. Further, the question in both suits being the same, namely, whether A was entitled to the property or B, the title by survivorship and the title by heirship could not be said to be so dissimilar that their union might lead to confusion. It may appear at first sight that the two matters are dissimilar, for the title by survivorship and the title by heirship have to be supported by different evidence. But the test of evidence, which was brought to the front in some old decisions is not a satisfactory one, and though it was advanced in argument in two cases before the Judicial Committee of the Privy Council, it was not even so much as noticed in the judgments in those cases. The reason is obvious, for when a plaintiff sets up alternative grounds of attack, or when a defendant sets up alternative grounds of defence, the evidence in support of such alternative grounds must in the majority of cases, be different. But where the evidence in support of one ground is such as might be destructive of the other ground, the two grounds, it has been said, need not be set up in the same suit. The reason given is that the test of determining whether both the grounds ought to have been set up in the same suit is afforded by the provisions of O. 2, r. 1, and the provisions of that rule as to the framing of suits are only to be applied “as far as practicable”. It is clear that it cannot be said of any matter that it ought to have been set up as a ground of attack in a former suit, if its introduction would have been incongruous to the matter of that suit.

The decisions bearing on this branch of the subject are numerous and at first sight conflicting. A careful examination of these decisions leads to the following four Rules.

Rule I

Where the right claimed in both suits is the same, the subsequent suit will be barred as res judicata, though the right in the subsequent suit may be sought to be established by a title different from that in the first suit.

Exception. The dismissal of a plaintiffs suit for the recovery of land based on an alleged lease is no bar to a subsequent suit for the recovery of the same land on the strength of his general title. [In this and the following rules when it is said that the subsequent suit is barred as res judicata, it is understood that it is barred by virtue of Explanation IV, and that the other conditions of res judicata are present]

Illustrations of Rule 1
  1. See Gudappa v. Tirkappa25), being illustration (1) above, and Masilamania v. Thiruvengadam 26), being ill (3).
  2. A Hindu, H, dies leaving a widow W, and a son-in-law, S, being the husband of a predeceased daughter, D. W sues S, as the heir of her husband, to recover certain property, alleging that it forms part of the estate of H. The defence is that H had made a gift of the property to his daughter D, and that on D’s death, S as D's husband, became entitled to the property as D's heir. W alleges that the deed of gift relied upon by S is a forgery. The Court finds that the deed of gift is genuine, and the suit is dismissed. W then sues S to recover the same property, alleging that it being found that the property belonged to D, she is entitled to the property as the heir of her daughter, D, The suit is barred as res judicata. Here the right claimed in both the suits is the same, namely the right to the property in question. In the first suit, it was claimed by W as her husband’s heir. In the second suit it is sought to be established by her by a different title, namely, as her daughter's heir. W “ might and ought ” to have claimed in the alternative as her daughter's heir in the former suit. Having failed to do so, her title, as her daughter’s heir, will be deemed to have been directly and substantially in issue in the former suit, and it will also be deemed to have been heard and finally decided against her in that suit: Denobundhoo v. Kristomonee Dossee27) dissented from in Ummatha v. Cheria28). The Madras case falls within the Exception rather than the Rule.
  3. A lends Rs. 50,000 to a Hindu widow on a mortgage of her husband’s property. The widow then surrenders the property to by the reversionary heir of her husband, on B agreeing to pay all her debts. A sues B and the widow to recover Rs. 50,000 by sale of the mortgaged property . A also asks for a personal decree against the widow, but he does not ask for a personal decree against B. B is joined as a defendant on the ground that the mortgaged property formed part of the property transferred by the widow to him. The Court finds that the mortgage is not binding upon the husband’s estate, and the suit against B is accordingly dismissed. As against the widow, a personal decree is passed for the amount of the loan. A realises Rs. 5,000 only from the widow, and after her death, he sues B for the balance of the money due under the decree (that is to say, A asks for a personal decree against B for the balance), alleging that B was personally liable under the agreement with the widow to pay her debts. The suit is barred as res judicata, for A “ might and ought ”to have alleged in the former suit that if the mortgage was not binding on the estate, B was at all events personally liable to pay the debt in consequence of the agreement which he had entered into with the widow : Kameswar Pershad v. Rajkuwari29).

Note: Suppose that in the above illustration, A had applied in the first suit for amendment of the plaint by adding a claim for relief against B personally, but the application was refused. In such a case it has been held that the subsequent suit would not be barred : Alagirisami v. Sundareswara30), Thakore v. Thakore31).

Illustration of the Exception to the Rule

A sues B to recover certain land from him, alleging that B held the land under a lease and that the lease had expired. The lease is not proved, and the suit is dismissed. Subsequently A sues B to recover the same land on the strength of his title. The suit is not barred as res judicata. Zamorin of Calicut v. Narayanan32), Kutti Ali V. Chindan33), Kandunni v, Katiamma34), Ummatha v. Cheria35), Girdhar v. Dayabhai36)

Rule II

If a matter which forms a ground of attack in the subsequent suit could have been alleged as a ground of defence in the former suit, but was omitted to be so alleged in that suit, it will be deemed to have been directly and substantially in issue in that suit within the meaning of Explanation IV. This rule contemplates cases in which the plaintiff in the subsequent suit was defendant in the former suit.

Illustrations
  1. The Privy Council case of Srimut Rajah v. Katama Natchiar37), and the Privy Council case of Doorga Persad v. Konwari38), belong to this class.
  2. A and B, two Hindu brothers who have become separate in estate, own a garden which has not yet been divided between them. A dies leaving a widow who sells A's half share in the garden to C, After the death of the widow, C sues B for partition of the garden, and a decree ex parte is passed under which he (C) enters into possession of a moiety of the garden. B then sues C to recover possession of the moiety sold by A’s widow to C, alleging that the sale was made by the widow without legal necessity, and that on the death of the widow, he became entitled to the moiety as the reversionary heir of A. The suit is barred as res judicata . B “ might and ought ” to have raised the question of the validity of the sale as a ground of defence in the former suit : Shyama Charan v, Mrinmayi Debi39)
  3. A mortgagee, who holds the mortgaged property also as leasee from the mortgagor, sues the mortgagor to recover Rs. 3,000, being the amount of the mortgage-debt. At the date of the suit the mortgagee owes Rs. 4,000 to the mortgagor for rent under the lease, and this sum the mortgagor claims to set off against the mortgage-debt under an express agreement in that behalf. The agreement is not proved, and a decree is passed against the mortgagor for Rs. 3,000. The property is sold in execution of the decree, and it is purchased by the mortgagee with the leave of the Court. The mortgagor then sues the mortgagee to have the sale set aside, and for a declaration that tho mortgage-debt is extinguished, now claiming that a general account may be taken as between him and the mortgagee, and that in taking such account the rent due to him may be set off against the mortgage-debt. The suit is barred, for the mortgagor “ might and ought ” to have set up that claim in the alternative in the former suit : Mahabir Pershad v. Macnaghten40)
  4. A, who owns a share in a village, mortgages it to B, and sells it subsequently to C. C sues B for redemption of the mortgage, and obtains a decree. Subsequently B sues C for pre-emption of the share sold by A to C alleging that he is a co-sharer in the village and entitled as such to a right of pre-emption. The suit is not barred. The right of pre-emption not being a “ vested and ascertained ” right when B filed his written statement in the former suit, it could not have been properly pleaded by B as an answer to the claim for redemption in that suit : Ram Chand v. Durga Prasad41)

Rule III

Where the right claimed in the subsequent suit is different from that in the former suit, and it is claimed under a different title the subsequent suit is not barred as res judicata.

Illustrations
  1. A sues B for possession of certain lands alleged to have come to his share on a partition of joint family property with B. The defence is that the family property has not yet been divided, and the suit is dismissed on a finding to that effect. A subsequent suit by A against B for partition of the family property is not barred : Shivram v. Narayan42), Konerrav v. Gurrav43), Nila v. Govind44); contra, Bheeka v. Bhuggoo45)
  2. A, alleging that B held certain lands from him under a lease and that the lease had expired, sues B to recover Rs, 500 for use and occupation of the land. The defence is that the lease is a subsisting lease, and the suit is dismissed on a finding to that effect A subsequent suit by A to recover Rs. 500 as rent payable under the lease is not barred.46)

    Note the peculiar character of the cases cited above, in ill. (1), A first suing on the basis of a partition, the Court finding that there was no partition, and A subsequently suing for partition ; in ill. (2), A first suing on the basis that the lease has expired, the Court finding that the lease has not expired, and A subsequently suing on the basis that the lease is a subsisting lease.

  3. A suit by A against B in 1809 to recover a talukdari estate is dismissed on a finding that the estate had become the absolute property of B under a conditional sale made by A to B in 1853. A then sues B in 1875 for redemption of the same property, alleging that he had mortgaged the property as absolute owner thereof to B in 1854. The suit is not barred : “It may be difficult to reconcile the position of B as mortgagee in 1854 with his position as absolute owner in 1853, But if it be established that A was mortgagor in 1854, why should he be debarred of his right of redemption merely because at a certain date (i.e, in 1853) he may have had no right to the property at all ? ” : Amanat Bibi V. Jmdad Hussain47); Balbhaddar v. Ram Lal (1904) 26 All. 501.
  4. A sues B for redemption of a mortgage alleged to have been executed in 1856 of 50 cawnies of land. B denies the genuineness of the mortgage, and alleges that 14 out of the 50 cawnies were mortgaged to him in 1853, and that the 14 and the remaining 36 were sold to him by A in 1855. The mortgage is not proved, and the suit is dismissed. A then sues B to redeem the 14 cawnies on the footing of the mortgage of 1853. The suit is not barred : Ramaswami v. Vythinatha48), Veerana v. Mathukumara49), Parambath v. Puthengattil50), Thrikaikat v.Thiruthyil51); Mahabir v. Purbhoo Nath52); Ram Sahai v. Ahmadi Begam53)
  5. A, alleging that he mortgaged certain lands to B with possession, sues B for redemption the suit being brought by him as mortgagor, A fails to prove the alleged mortgage, and the suit is dismissed. A then sues B for 'possession, of the same lands, now claiming as owner thereof. The suit is not barred : Mahomed Ibrahim v. Sheik Hamja54)

Rule IV

It cannot be said of a relief 'which ' if claimed in the first suit would have made that suit bad for multifariousness that it ought to have been made, a ground of attack in that suit.

Application of the above rules to suits on mortgage. If a mortgagee, in a suit for redemption against him by the mortgagor, omits to obtain an order for sale of the mortgaged property on failure of payment by the mortgagor of the mortgage-debt within the time allowed for redemption, he will be precluded from bringing a separate suit for sale on default of payment by the mortgagor within the time afore said. The mortgagee might and ought to have claimed the right of sale in the suit for redemption brought against him. Similarly, if a prior mortgagee is made a party to a suit brought by a subsequent mortgagee on his mortgage, but omits to set up his claim under his prior mortgage, he will be precluded from bringing a separate suit to enforce his mortgage. This rule does not apply where the subsequent mortgagee admits in his plaint the debt due to the prior mortgagee and has actually offered to redeem that debt. In the same way, if a subsequent mortgagee is made a party to a suit on a mortgage prior to his own, but omits to claim his right to redeem such prior mortgage, he cannot afterwards sue for that purpose on the mortgage he has omitted to plead.

In this connection we may mention a point which was left open by their Lordships of the Privy Council in Sri Gopal v. Pirthi Singh cited above, namely, whether a mortgagee who has several mortgages on the same property can treat them as separate causes of action, or whether he must bring one suit on all of them. This point arose in a recent case before the High Court of Bombay, where it was held that if a mortgagee who has two mortgages upon the same property sues upon the mortgage of the later date, and the property is sold without reference to the prior mortgage, he cannot afterwards sue on the prior mortgage, not because the several mortgages constitute but one cause of action within the meaning of O. 2, r. 2, but because of the general principles of the law of mortgage and of res judicata.

Similarly it has been held by the High Court of Madras that if the mortgagee brings a suit on the prior mortgage without mentioning his subsequent mortgage, and the property is sold, he cannot afterwards sue to enforce the subsequent mortgage against the property. The ground of these decisions seems to be that the mortgagee in such a case must be deemed to be a party to the first suit as a prior or subsequent mortgagee according as the first suit is on the subsequent or prior mortgage, and that the ease therefore is similar to the one where the prior or subsequent mortgagee being joined as a party does not set up his claim under the mortgage. But where a mortgagee who has two mortgages upon the same property sues on the mortgage of the later date reserving his rights under the prior mortgage, and the property is put to sale subject to the prior mortgage there is nothing to preclude him from subsequently suing upon the prior mortgage.

In suits for redemption, foreclosure or sale, there ought to be a complete and final settlement of all accounts between the mortgagor and the mortgagee right up to the time of actual redemption, foreclosure or sale, as the case may be. A mortgagor, therefore, who has obtained a decree for redemption against a mortgagee in possession, and paid what was due according to the decree, and obtained possession, cannot subsequently sue for profits realised by the mortgagee for a period prior to the delivery of possession. Such profits “might and ought” to have been taken into account at the time of passing the decree.

Similarly, where a suit is brought by a mortgagor under s. 62 of the Transfer of Property Act to recover possession of the mortgaged property, the mortgage being a usufructuary one, and a deposit is made by him in Court under S.83 of the Act of the amount due to the mortgagee, and a decree is passed for possession, the mortgagor cannot subsequently sue for profits realized by the mortgagee from the date of the deposit to the date of the delivery of possession.

In both these cases it might be said that there was but one cause ot action, and the subsequent suit was there-fore barred by the provisions of O. 2, r. 2.

Subject-matter of the suit

It is not necessary for Explanation IV to be applicable that both the issue and the subject-matters of the two suits must be the same. It is quite enough if the matters in issue are the same, otherwise in suits for arrears of rent there could be no res judicata at all, for the subject-matters of successive suits for arrears of rent are necessarily different.

Issue of law

Issues are of three kinds :

  1. issues of fact,
  2. issues of law, and
  3. mixed issues of law and fact.

An issue of fact may be res judicata. Almost all the cases we have hitherto dealt with relate to issues of fact. Note the words with which the section begins “ no Court shall try any suit or issue”

An issue of mixed law and fact stands on the same footing as an issue of fact, and it may also be res judicata. An issue of law may or may not be res judicata. It may be res judicata if the cause of action in the subsequent suit is the same as that in the former suit. But it cannot be res judicata if the cause of action in the subsequent suit is different from that in the former suit. The latter cases are all cases of recurring liability, such as rent, maintenance, etc.

Illustrations

  1. X sells certain property to A. At the time of sale the property was in the possession of B who claimed it adversely to X. A then sues B in the High Court of Calcutta to recover possession of the property under the deed of sale from X. An issue is raised in the suit, and it is an issue of law, namely, whether a person who is not in possession of property at the time of sale is competent to convey it. The issue is found in the negative, and A’s suit is accordingly dismissed. It is subsequently decided by a Full Bench of the same High Court in another case between different parties altogether that although a person may not have property in his possession, he is nevertheless competent to convey it. After the decision of the Full Bench, A again sues B to recover possession of the same property under the same deed of sale, and asks for a decision in his favour on the strength, of the Full Bench ruling on the point of law that was decided against him in the former suit. Here the cause of action in the subsequent suit is the same as that in the former suit. The Court is therefore precluded from retrying the same question of law in the subsequent suit, in other words, the issue of law is res judicata. It is immaterial that the decision on the question of law in first suit was erroneous : Gowri Koer v. Audh Koer55). See as to this case the observations of Maclean, C.J., in Alimunnissa v. Shama Charan56)
  2. A sues B in the year 1894 to recover 12 years arrears of his share of a certain Government allowance received by B. B contends that A is not entitled to recover more than ‘3 years’ allowance, having regard to the provisions of the Indian Limitation Act. The Court decrees the whole of A's claim. In the year 1907 A sues B tor further arrears for 12 years from the year 1895 to the year 1906. B raises the same point of law that was raised by him in the former suit. Here the cause of action in the subsequent suit is different from that in the former suit, for the claim in the subsequent suit is for further arrears that had accrued due after the institution of the former suit. The Court, therefore, is not precluded from re-trying the same question of law, and if it finds that the question of law was wrongly decided in the former suit, it may decide the suit on what it considers is the correct interpretation of the law : Chamanlal v. Bapubhai57) It will be observed that in the case cited in ill. (2) the matter directly and substantially in issue in the subsequent suit was also directly and substantially in issue in the former suit, and the other conditions of res judicata were also present, and yet it was held that the subsequent suit was not barred as res judicata. The effect of this and other cases cited earlier appears to be that where the matter directly and substantially in issue is a matter of law it may not be res judicata, if the cause of action in the subsequent suit is different from that in the former suit. The reason given for the decisions now under review is that the Courts would be perpetuating an injustice for all time if they were to hold that an erroneous decision on a point of law in a former suit was binding upon the parties in a subsequent suit instituted upon a fresh cause of action.

Same parties

A sues B for rent. The defence is that C, and not A, is the landlord. A fails to prove his title, and the suit is dismissed. A then sues B and C for a declaration of his title to the property. The suit is not barred, for the parties to the two suits are not the same, C not having been a party to the former suit.

Res judicata as between co-defendants

As a matter may be res judicata between a plaintiff and a defendant, so it may be res judicata as between co-plaintiffs or as between co-defendants.

Res judicata between co-defendants

If in a suit by A against B and C, there is a matter directly and substantially in issue between B and C, and an adjudication upon that matter is necessary to the determination of the suit, the adjudication may operate as res judicata in a subsequent suit between B and C in which either of them is plaintiff and the other defendant. In other words, if a plaintiff cannot get at his right without trying and deciding a case between co-defendants, the Court will try and decide the case, and the co-defendants will be bound. But if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound as between each other by any proceeding which may be necessary only to the decree which the plaintiff obtains ”.

The above observations indicate the reluctance which the Courts ordinarily feel to extending the doctrine of res judicata to co-defendants. A Hindu, H, dies leaving two daughters D1 and D2 and a nephew N. D1 sues D2 and N to recover certain property under an oral will of H, D2 claims the property under a will in writing executed by H. N claims the property as undivided nephew of H. The Court finds that H and N were divided, that the will in writing is the valid will, and dismisses D1’s suit. Subsequently D2 sues N to recover the property under the written will. N Contends that he and H were joint, and that he became entitled to the property by right of survivorship. The question whether H and N were joint is res judicata. That question was directly and substantially in issue in the first suit, and it was necessary to decide it in that suit to adjudicate upon D1's claim, and it was decided against N.

Res judicata as between co-plaintiffs

Next, as to res judicata between co-plaintiffs. As a matter may be res judicata between co-defendants, so it may be res judicata between co-plaintiffs, subject to the same conditions that obtain in the case of co-defendants.

Parties in subsequent suit claiming under parties in former suit

If the first suit is between A and B and the second between A and C, the decision in the first suit cannot operate as res judicata in the second unless C claims under B. If C does not claim under B, he cannot be bound by any decision in a suit between A and B. The dismissal, therefore, of an ejectment suit brought by a lessee against a trespasser is no bar to a subsequent suit for ejectment by the lessor against the same person ; for a lessor cannot be said to claim under his lessee. Where there are several reversioners entitled successively to a property held by a Hindu widow and forming part of the estate of her husband, no one of such reversioners can be said to claim through or derive his title from another ; a decree, therefore, in a suit by one of the reversioners seeking to set aside an alienation made by the widow of her husband’s property is no bar to a subsequent suit brought by another reversioner for setting aside the same alienation. If the first suit is between A and B, and the second between C and D, the decision in the first suit cannot operate as res judicata in the second unless C claims either under A or B, and D claims under the other of them ; that is to say, if C claims under A, D must be claiming under B, and if C claims under B, D must be claiming under A. It is clear that if both C and D claim under A alone, nothing that is decided in the suit between A and B will operate as res judicata in the subsequent suit between C and D, for neither of them claims under B. The result is the same if both C and D claim under B alone. In other words, the plea of res judicata cannot prevail if all the parties in the subsequent suit claim under one party only in the former suit.

A Hindu son in a joint family does not “ claim under ” his father within the meaning of this section ; he becomes entitled by reason of his birth and in his own right,a right which he can enforce against his father. Therefore the dismissal of a suit for redemption of a mortgage of joint family property brought by the father alone is no bar to a subsequent suit for redemption by the son. But the son, it seems, would be bound by the decree, if he had knowledge of the suit and had assisted the father in the suit. Mere knowledge, of the suit, however, is not enough to bind the son. The cases in which it has been held that a decree obtained against a Hindu father for a debt is binding upon the son stand on a different footing. They relied on the obligation of a Hindu son to pay his father’s debts not improperly incurred, and upon the presumption in some of them that the suit was brought against the father as the representative of the family and of the family property.

A purchaser at a revenue sale does not “ claim under ” the defaulting proprietor : therefore a decree against the defaulting proprietor cannot constitute res judicata as against the purchaser. The title by which the parties in the subsequent suit claim must have arisen “ subsequently ” to the commencement of the former suit.

In order that a decision in a suit between A and B may operate as res judicata in a subsequent suit between A and C, it is necessary to show that C claims under B by a title arising subsequently to the commencement of the first suit. Thus a purchaser, mortgagee, or donee of a property is not estopped by a decree obtained in a suit against the vendor, mortgagor or donor commenced after the date of the purchase, mortgage or gift.

Explanation VI

This explanation provides that where persons litigate bond fide in respect of a public right or a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to “ claim under ” the person so litigating. It refers to cases in which a decision in a suit may operate as res judicata against persons not expressly named as parties to the suit, as where a suit is instituted by A and B on behalf of themselves “ and others,” or where it is instituted against A and B on behalf of themselves “ and others”.

The conditions under which the decision in such a suit may constitute res judicata against the parties not expressly named in the suit are

  1. that there must be a right claimed by A and B in common for themselves and the parties not expressly named in the suit, and
  2. that the parties not expressly named in the suit must be interested in such right.

Illustrations

  1. A decree in a suit against certain members of a sect alleged to be wrongdoers in their individual capacity cannot operate as res judicata in a subsequent suit against the other members of the sect: Sadagopa Chariar v. Krishnamoorthy Rao58) [The wrong complained of in the former suit in this case was that the defendants carried an idol in procession through certain streets and that such processions were in violation of the plaintiff’s rights. The suit was against the defendants in their individual capacity, and not as representing the sect to which they belonged].
  2. A, alleging that he is the proprietor of a village, sues B, C, and D for ejectment. The defence is that A is not the proprietor at all, that a part of the village belongs to B, C and A and the rest to X, Y and Z. The Court finds that A is not the proprietor, and A’s suit is dismissed. A then sues X, Y and Z and also B, C and D, for a declaration, that he is the proprietor of the village and for possession. The question of A’s title to the village is res judicata so as to bar the suit against B, C and D, who were parties to the former suit, but it is not res judicata so as to bar the suit against X, Y and Z who were not parties to the former suit. It cannot be said that B, C and D litigated in the former suit in respect of a private right claimed in common for themselves and X, Y and Z for what B, C and D did in the former suit was that they set up their own right to a part of the property and alleged that another part belonged to X, Y and Z : Jaimangal Deo V. Bed Saran59).
  3. A and B as members of the Mahomedan community bring a suit against C for a declaration that a certain mosque and a garden appertaining to the mosque are wakf property. The plaintiffs fail to prove that the property is wakf property, and the suit is dismissed. After some years a suit is brought by nine other members of the same community against the same defendant C for the same relief. The suit is barred as res judicata : Muhammad. v. Sumitra.60)

The right referred to in this Explanation may either be a public right or a private right. The words “ public right ” have been added into this Explanation in view of the provisions of s. 91. The right to have a public nuisance abated is a public right. But the right of pasturage claimed by custom by the inhabitants of a village over a tract of land, or to take water from a spring or well, is a private right.

It may here be noted that in some of the cases that arose under the Code of 1882 the opinion was expressed that the present Explanation, so far as it relates to rights, must be confined to cases where leave to sue had been obtained under s. 30 of that Code [now O. 1, r. 8].

Representative suit

If the parties in the subsequent suit can be said to have been represented by the parties in the former suit, the decision in the former suit will bind the parties in the subsequent suit. Thus a trustee of a devasam, a karnavn a holder of vatan lands, an administrator of the estate of a deceased person, a shebait, a holder of saranjam lands, represents each his successor : therefore, a decree against him will bind his successor. Similarly a decree against a benamidar binds the real owner. On the same principle a decree against the karnavan of a tarwad in his representative capacity binds the members of the tarwad. A decree passed against a Hindu widow as representing the estate of her deceased husband in respect of a debt or other transaction binding on the estate is binding upon the reversioners, “unless” as was observed by their Lordships of the Privy Council in the Shivaganga case, “it could be shown that there had not been a fair trial of the right on that suit or in other words, unless that decree could have been successfully impeached on some special ground”. The reason of this qualification is that, though a Hindu widow represents the estate of the reversioners for some purposes, it is her duty not only to represent the estate, but also to protect it. Thus it has been held that a compromise made by a Hindu widow is not binding on the reversioners, whether litigation has commenced or not, not even if it has been followed by a decree of Court And the opinion has also been expressed that a decree against a Hindu widow passed on an award does not bind the reversioners. In fact, the Courts have held that a decree against a Hindu widow does not bind the reversioners unless it was passed “ in a suit contested to the end ”, or, as put by the High Court of Allahabad, “the reversioners can be bound only by decree made after full contest in a bona fide litigation”. But if a decree is passed after full contest, it is binding on tho reversioners, though the widow may have filed an appeal from the decree, and subsequently withdrawn the appeal. The effect of these decisions is that when a suit is brought against a Hindu widow by a creditor of her husband, and the widow consents to a decree being passed against her, the decree cannot bind the reversioners at all, though the widow may be quite satisfied that the debt was really due. But the High Court of Madras has held differently in a case. In that case it was observed that a Hindu widow “ as representing the estate was certainly not bound to raise any defence in the case when satisfied that the debt was really due,” and it was held that the decree, though if was a consent decree, was binding on the reversioners, the Court having been satisfied on the evidence adduced in the suit before it that the debt was in fact due and that there was no collusion or fraud in obtaining the decree. The effect of that decision is that a decree against a Hindu widow, though it is a consent decree, may bind the reversioners in a proper case, not that it cannot bind the reversioners in any case as held by the other High Courts. The same view has been taken by the High Court of Allahabad. The extreme view taken by the Bombay and Calcutta High Courts is difficult to support since the decision of the Privy Council in Khunni Lal v. Govind Krishna, in which their Lordships expressly recognised the power of a daughter (who takes a widow’s estate in provinces other than the Bombay Presidency) to enter into a compromise even without litigation. However that may be, it is quite clear that a decree passed against a widow not in her representative but personal character, cannot bind the reversioners. Similarly a decree passed against the legal personal representative of a Hindu widow in respect of her husband’s estate cannot bind a reversioner, for the representative of a widow does not represent the estate of the husband. But there is no authority for the proposition that a Hindu widow, otherwise qualified to represent an estate in litigation, ceases to be so qualified merely owing to personal disability or disadvantage as a litigant, although the merits of a suit by or against her are tried and the trial is fair and honest. The mere fact, therefore, that she is personally estopped from denying the material facts of the case is no ground for withholding the application of the rule enunciated at the commencement of this paragraph, namely, that where the estate of a deceased Hindu has vested in his widow or other limited heir, a decree fairly and properly obtained against her, after a trial upon the merits, is binding on the reversionary heirs. Thus where a Hindu widow instituted a suit for a declaration that an adoption made by her to her deceased husband was invalid, and the suit was dismissed on the ground that the widow was estopped by her conduct from denying the validity of the adoption, and it was further found upon the facts that the adoption was valid, it was held in a suit brought by the reversionary heir after the widow’s death for a declaration that the adoption was invalid, that the reversionary heir was bound by the decision in the first suit as res judicata. But a decree passed against a widow by reason of an admission made by her does not bind the reversioner.

Judgment in rem

It will have been seen from what has preceded that a judgment in a suit is binding only upon the parties to the suit and their privies. As a general principle, a transaction between two parties in judicial proceedings ought not to be binding upon a third ; for it would be unjust to bind any person who could not be admitted to make a defence, or to examine witnesses, or to appeal from a judgment he might think erroneous. There are, however, certain judgments which bind all the world and not only the parties to the proceeding in which they were passed and their privies. A judgment that is binding upon the parties and their privies only is called a judgment in personam. A judgment which binds all the world is called a judgment in rem. Judgments in rem are outside the scope of the present section. They are dealt with in the Indian Evidence Act, s. 41.

Decree against minor

A decree passed aginst a minor properly represented is binding upon him like a decree passed against an adult, but it is open to the minor to impeach such decree by a suit in cases where the next friend or guardian for the suit has been guilty of fraud or negligence in allowing the decree to be passed against him.

Litigating under the same title

The third condition of res judicata is that the parties in the subsequent suit must have litigated under the same title in the previously decided suit. The expression “ same title ” means the same capacity. A verdict against a man suing in one capacity will not stop him when he sues in another distinct capacity, and, in fact, is a different person. Thus where a suit is brought by a person to recover possession from a stranger of math property claiming it as the heir of a deceased mohunt, but he does not produce any certificate of succession to establish his heirship and the suit is thereupon dismissed, the dismissal is no bar to a suit by him as manager of the math on behalf of the math. Similarly the dismissal of a suit brought by a son against his father for maintenance claimed under an agreement is no bar to a suit by him against the father for a declaration that he is entitled to maintenance out of certain lands in the hands of the father hdd under a sanad from Government whereby, it was alleged, the lands were charged at the time of grant with the maintenance of the junior members of the family.

A mortgagee in possession, does not lose the character of mortgagee and become a trespasser because he refuses to deliver up possession of the mortgaged property to the mortgagor on deposit being made by the latter in Court of the amount payable on the mortgage. A executes a usufructuary mortgage of his property to B, and places B in possession thereof. At the proper time A tenders the mortgage-debt, Rs. 500, to B and asks to be restored to possession. B refuses to accept the tender on the ground that more is due to him and to deliver up possession of the property to A. A sues B for redemption, and deposits Rs. 500 in Court. The Court finds that the tender was proper, and directs B to deliver up possession to A, After entering into possession, A sues B to recover mesne profits from B from the date of the deposit in Court to the date of the recovery of possession. The suit is barred, for A “ might and ought ” to have claimed the mesne profits in the first suit. The suit is between the same parties litigating “ under the same title ” that is, as mortgagor and mortgagee. The mortgage is not extinguished after the tender and deposit, and B does not become a trespasser after that date. It cannot therefore be said that the suit against B for mesne profits is against him as a trespasser and not as a mortgagee.

The words “ between parties under whom they or any of them claim litigating under the same title ” cover a case where the later litigant occupies by succession the same position as the former litigant. There may be a succession by the ordinary rules of inheritance or succession by some very special rules as in the case of Saranjam estates or Vatan estates. The words of the section do not make any distinction between different forms of succession. A decree, therefore, against a Saranjaradar may operate as res judicata against his heir and successor; so also a decree aginst a Vatandar.

Court competent to try the subsequent suit

The Court which decided the former suit must have been a Court competent to try the subsequent suit or the suit in which the Issue alleged to be barred as res judicata Is subsequently raised. In order that a decision in a former suit may operate as res judicata in a subsequent suit, it is necessary that the Court which tried the former suit must have boon a Court competent to try the subsequent suit. The Court which decided the former suit may have been a Court of “ exclusive ” jurisdiction, or a Court of “concurrent” jurisdiction, or it may have. been a Court of which the jurisdiction was “not concurrent“ with that of the Court in which the subsequent suit is brought.

Where the Court which decided the former suit was a Court of “exclusive" jurisdiction

A matter directly and substantially in issue in a former suit has been adjudicated upon by a Court of exclusive jurisdiction, the adjudication will bar the trial of the same matter in a subsequent suit, though the Court which decided the former suit may not be competent to try the subsequent suit. Thus Courts of Revenue have jurisdiction in respect of certain matters to the entire exclusion of Civil Courts, and a judgment of a Revenue Court on such a matter will operate as res judicata in a subsequent suit in a Civil Court, though the Revenue ‘Court may not be competent to try the subsequent suit.

Where the Court which decided the former suit was a Court of which the jurisdiction was “ not concurrent" with that of the Court in which the subsequent suit is brought

In such a case the Court which decided the former suit could not possibly be a Court “ competent to try the subsequent suit ” within the meaning of this section.

Where the Court which decided the former suit was a Court of concurrent jurisdiction

In such a case the Court which decided the former suit may or may not have been “ competent to try the subsequent suit”. If it was, the decision would operate as res judicata, but not otherwise.

Summary

Summarising the above, we may say that in order that a decision in a former suit must operate as res judicata, the Court which decided that suit must have been either :

  1. a Court of exclusive jurisdiction, or
  2. a Court of concurrent jurisdiction “competent to try the subsequent suit”.

Competent to try such subsequent suit

In determining whether a Court of concurrent jurisdiction, which decided the former suit, was competent to try the subsequent suit, the following points should bo noted :

The Court which decided the former suit must have been a Court competent to try the subsequent suit as regards the “ amount ” of the subsequent suit. In other words, the jurisdiction of the Court which decided the former suit, and that of the Court in which the subsequent suit is brought, must be concurrent as regards their pecuniary limit. A sues Bin Court X to recover interest due on a bond for Rs. 12,000. For the defence it is alleged that the amount actually lent by A was Rs. 4,000, that B being in want of money passed the bond for Rs. 12,000 and that A therefore was not entitled, to interest on more than Rs. 4,000. The Court finds that the amount actually lent was Rs. 4,000, and awards A interest on that amount. Court X is a Court of which the jurisdiction is limited to suits of which the value does not exceed Rs. 6,000. A then sues in a High Court to recover the principal sum of Rs. 12,000, alleging that that was the actual amount lent by him to B. B contends that the actual amount advanced was Rs. 4,000, and that the question as to whether Rs. 12,000 was lent or Rs. 4,000 is res judicata. The question is not res judicata for the jurisdiction of Court X being limited to Rs. 5,000, it was not a Court competent to try the subsequent suit in which the amount claimed is Rs. 12,000.

The jurisdiction of the two Courts must be concurrent not only as regards the pecuniary limit, but also as regards the subject-matter of the subsequent suit. Thus certain Courts have no jurisdiction to adjudicate upon questions of title, though that question may be gone into incidentally to decide the principal question. A finding on a question of title by such Court cannot operate as res judicata. This generally happens in the following cases :

  1. Where the first Court is a Probate Court and the second Court a Civil Court : A and B, each claiming to be the heir of X, apply to a High Court, in the exercise of its testamentary jurisdiction, for letters of administration of the estate of X. The Court finds that A is the heir of X, and grants letters to him. B then sues A in the same Court in the exercise of its original jurisdiction for a declaration that he, and not A, is the heir of X. The suit is not barred, for a Probate Court has no jurisdiction to finally adjudicate upon questions of title. It must not, however, be supposed that a decision of a Probate Court cannot operate as res judicata in any subsequent proceeding in a Civil Court. Thus if A, alleging to be the executor of B's will, applies for probate of the will, and C, B’s widow, opposes the application, and probate is refused on the ground that the will is not proved, A will be precluded, in a subsequent suit by C against him to recover her husband’s property from him, from contending that he is the husband’s executor and is entitled as such to retain possession of the property. Though the judgment of the Probate Court refusing probate to A does not operate in such a case as a judgment in rem, it operates as res judicata between A and C under s. 83 of the Probate and Administration Act (V of 1881) and section 11 of the Code. Similarly a decision of the S. 11 Probate Court that the testator executed the will sought to be proved as a free agent and not under undue influence precludes the party against whom the decision was given from reopening it in a suit in a Civil Court. See Evidence Act, 1872, s. 41.
  2. Where the first Court is a, Rent control Court and the second Court a Munsif Court: A sues B for rent in a Rent control Court. The defence is that C and not A is the landlord. The Court finds that A is not the landlord, and the suit is dismissed. A then sues C in a Munsif Court for a declaration of title to the land. The suit is not barred, for a Rent Control Court has no jurisdiction to adjudicate upon questions of title. Similarly, a decision in a suit for damages instituted in a Provincial Court of Small Causes [a Court not competent to try a suit for title] does not operate as res judicata in a subsequent suit for establishment of title.
  3. Where the first Court is a Revenue Court and the second Court is a Civil Court. The decision of a Revenue Court on a question of title is no bar to the trial of the same question by the ordinary Civil Courts, unless the Revenue Court is empowered by the Legislature to determine questions of title so as to constitute it pro tanto a Civil Court. The reason is that Courts of Revenue are generally Courts of jurisdiction limited to adjudicate upon questions of rent, tenure, etc. There are, however, some matters of which the decision by a Revenue Court is expressly declared by the Act constituting the Court to have the force of a decree in a civil suit, and some as to which it is declared that the decision shall be final. In such cases, the decision of a Revenue Court will operate as res judicata so as to bar the trial of the same matter in a Civil Court.
  4. Where the first Court is a Criminal Court and the second Court is a Civil Court. An order by a Magistrate declaring a party to be entitled to possession of certain lands, is conclusive on the point of actual possession in a subsequent proceeding in a Civil Court. But a conviction or an acquittal in a criminal case is not conclusive in a civil suit for damages in respect of the act charged against the accused. The finding, therefore, of a Criminal Court that A assaulted or abducted B, is not res judicata in a suit for damages against A for assault or abduction. The judgment of a Civil Court may in a proper case be admissible in evidence in a criminal proceeding between the same parties. Thus where A charged B with criminal breach of trust in respect of certain items, and it appeared that all those items had been dealt with by the Civil Court and the contentions of the accused with reference to all of them had been found to be correct by that Court, it was held that the judgment, of the Civil Court was admissible in evidence in the criminal proceeding against the accused.

To determine whether the Court which decided the former suit had jurisdiction to try the subsequent suit, regard must be had to the jurisdiction of that Court at the date of the former suit, and not to its jurisdiction at the date of the subsequent suit . The leading case on the subject is Gopi Nath v. Bhagwat. In that case a suit was brought in the year 1860 to recover certain property of which the value at that time was less than Rs. 1,000, and therefore the proper Court to try it was that of the Munsiff. A second suit was afterwards brought in the year 1880 between the same parties in the Court of the Subordinate Judge to recover the same property, which had then risen in value and become worth more than Rs. 1,000. The matter directly and substantially in issue in both the suits was the same, and the question arose whether the decision of the Munsif in the first suit operated as res judicata in the second suit. It was contended that as the Munsif could not have tried the second suit in consequence of the value of the property in question is more than Rs. 1,000, his decision could not have the effect of res judicata , But it was held that the decision operated as res judicata, for if the second suit were instituted in the year 1800, that is, at the time when the first suit was brought, the Munsif Court would have been quite competent to try it. Mitter J. said; “The reasonable construction of the words “in a Court of jurisdiction competent to try such subsequent suit” seems to us to be that it must refer to the jurisdiction of the Court at the time when the first suit was brought ; that is to say, if the Court which tried the first suit was competent to try the subsequent suit, if then brought, the decision of such Court would be conclusive under s. 13 [of the Code of 1882], although on a subsequent date by a rise in the value of such property or from any other cause the said Court ceased to be a proper Court, so far as pecuniary jurisdiction is concerned, to take cognizance of a suit relating to that property”. The High Court of Madras has also held the same way. But it has been held by the latter Court that the augmentation of a pecuniary claim by accrual of interest is not similar to a rise in the market value of a property, and that though in the latter case the decision in the prior suit may operate as res judicata in the subsequent suit, it cannot in the former case.

The Court which decided the former suit must have been such a Court as would have been competent to try and decide not only the particular “ matter in issue in the subsequent suit, but also the subsequent “suit itself“ in which the issue is subsequently raised.

It is the competency of the original Court which decided the former suit that must be looked to, and not that of the appellate Court in which that suit was ultimately decided on appeal. A suit is instituted in a Munsif’s Court. An appeal from the decree in that suit is preferred to a District Court. A subsequent suit relating to the same matter in issue is brought also in a District Court. The decision in the first suit cannot operate as res judicata in the subsequent suit, for though the District Court that heard the appeal may have jurisdiction to try the subsequent suit, the Munsif’s Court, that is, the Court which decided the former suit, is not a Court of jurisdiction competent to try the subsequent suit.

A Court does not cease to be a Court of jurisdiction competent to try the subsequent suit, if its inability to entertain it arises not from incompetence, but from the existence of another Court with a preferential jurisdiction. Thus a finding by a Munsif in a suit for possession under s. 9 of the Specific Relief Act, 1877, instituted in his Court that the plaintiff was wrongfully dispossessed by the defendant, is res judicata on the issue as to wrongful dispossession in a subsequent suit brought by the same plaintiff against the same defendant for damages for wrongful dispossession in a Court of Small Causes. It cannot be said that the Munsif who tried the first suit was not competent to try the subsequent suit for damages. A decision on a matter directly and substantially in issue in a former suit may operate as res judicata though the plaintiff may in the subsequent suit join new causes of action with such matter and institute the subsequent suit in a Court of superior jurisdiction. Thus a decision in a suit brought in a Munsif’s Court that the plaintiff is not entitled to road and public works cesses at the rate claimed by him will operate as res judicata (other conditions of res judicata being present) in a subsequent suit by the same plaintiff against the same defendant instituted in the Court of a Subordinate Judge to recover road and public works cesses at the rate claimed by him in the former suit and also embankment and dak cesses. It cannot be said that the claim for road and public works cesses is not barred as res judicata because the Munsif was not competent to try the subsequent suit. “It would have been perfectly competent for a Munsif to try the plaintiff’s present suit for road cess and public work.

A decision on a matter directly and substantially in issue in a suit tried by a Revenue Court may operate as res judicata in a subsequent suit brought in the same Court, though the character of the suits may be such that in the one case an appeal lies to the Commissioner, and in the other to a District Court. The fact that in the two suits appeals may lie to different Courts does not affect the application of the rule of res judicata.

Explanation II

This explanation is new. Under the Code of 1882 it was held by the High Courts of Bombay and Madras that a decision in a suit in which no second appeal was allowed by law could not operate as res judicata, in a subsequent suit in which such appeal was allowed. Hence it was held that a decision in a suit of the nature cognizable in Provincial Courts of Small Causes could not operate as res judicata where the amount or value of the subject-matter of the suit did not exceed Rs, 500, as no second appeal could lie in such suit. On the other hand, it was held by the High Court of Calcutta that a decision in a suit could operate as res judicata, notwithstanding that no second appeal was allowed by law in that suit. Explanation II is intended to affirm the view taken by the High Court of Calcutta that the competence of the jurisdiction of a Court does not depend on the right of appeal from its decision.

Judgment delivered by a Court not competent to deliver

A judgment delivered by a Court not competent to deliver it cannot operate as res judicata [Evidence Act, 1872, s. 44]. For this purpose there is no distinction, so far as Chartered High Courts are concerned, between cases where a Court has no Jurisdiction at all to try a suit and cases where it cannot exercise jurisdiction unless leave to sue has been obtained under cl. 12 of the Charter. Therefore, a judgment delivered by a Chartered High Court in a suit which it has no jurisdiction to try unless leave to sue has been obtained cannot operate as res judicata if leave to sue was not obtained.

Judgment obtained by fraud or collusion

A judgment obtained by fraud or collusion cannot operate as res judicata [Evidence Act, 1872, s. 44]. Fraud is an extrinsic, collateral act, which vitiates the most solemn proceedings of Courts of Justice. Lord Coke says, it avoids all judicial acts, ecclesiastical or temporal. Where a decree is impeached on the ground of fraud, the fraud alleged must be actual positive fraud, a meditated and intentional contrivance to keep the parties and the Court in ignorance of the real facts of the case, and the obtaining of the decree by that contrivance. The mere fact that a decree has been obtained by perjured and false evidence is no ground for setting it aside on the ground of fraud.

Summary of above discussion

We cannot better summarise the rules of res judicata hitherto dealt with than by citing the following passage from the judgment in the Duchess of Kingstone's case :

From the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true : first, that the judgment of a Court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive, between the same parties, upon the same matter, directly in question in another Court ; secondly, that the judgment of a Court of exclusive jurisdiction, directly upon the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another Court, for a different purpose. But neither the judgment of a Court of concurrent or exclusive jurisdiction is evidence of any matter which came collaterally in question, though within their jurisdiction, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment.”

Heard and finally decided.

The mere fact that a matter directly and substantially in issue in a suit was directly and substantially in issue in a former suit is not sufficient to constitute the matter res judicata. It is further necessary, amongst other conditions, that the matter must have been “heard and finally decided” in the former suit. This does not mean that there should be an actual finding on the issue in question ; it is enough if the decree necessarily involves a finding of the issue. In this connection it is also important to note that if a decree is specific, and is at variance with a statement in the judgment, it is the decree to which we must pay attention, and not to the statement in the judgment. And, further, that neither an obiter dictum nor a mere expression of opinion in a judgment has the effect of res judicata.

A matter will be said to have been beard and finally decided notwithstanding that the former suit was disposed of

  1. ex parte or;
  2. by dismissal under 0. 17, r. 3 [Code of 1882, s. 158]; or
  3. by a decree on an award or
  4. by oath tendered under s. 8 of the Indian Oaths Act, 1873

If the plaintiff fails to adduce evidence at the hearing , and the suit is dismissed, it is none the less “heard and finally decided”. And a suit will be said to have been “heard and finally decided”, though it may have been dismissed as barred by limitation.

The decision in the former suit must have been one on the merits

In order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been one on the merits. Hence it could not be said of a matter that it was “heard and finally decided,” if the former suit was dismissed:

  1. for want of jurisdiction; or
  2. for default of plaintiff’s appearance under O. 9, r. 8 [Code of 1882, s. 102]; or
  3. for want of necessary parties, or
  4. for misjoinder of parties, or for multifariousness or
  5. on the ground that the suit was badly framed, or
  6. on the ground of a technical mistake; or
  7. for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree; or
  8. for failure to furnish security for costs under O. 25, r. 2 [Code of 1882, s. 381]; or
  9. on the ground of improper valuation, or
  10. for failure to pay additional court-fees on a plaint which was under-valued.

It cannot be said of a suit that it was “ heard and finally decided,” if the suit was dismissed but the judgment in the suit left it open to the plaintiff to sue again. Nor can it be said of a matter that it was “ heard and finally decided,” if the Court not only did not decide it, but expressly excluded it from decision.

The decision in the former suit must have been necessary to the determination of that suit

A matter directly and substantially in issue cannot be said to have been “ heard and finally decided ” unless the finding on the issue was necessary to the determination of the suit. A finding on an issue cannot be said to be necessary to the decision of a suit unless the decision was based upon that finding. And a decision cannot be said to have been based upon a finding unless an appeal can lie, against that finding. The reason is that everything that should have the authority of res judicata is, and ought to be, subject to appeal, and reciprocally an appeal is not admissible on any point not having the authority of res judicata”. This leads to the following rules :

Rule I

If the plaintiffs suit is wholly dismissed , no issue decided against the defendant can operate as res judicata against him in a subsequent suit, for the defendant cannot appeal from a finding on any such issue, the decree being wholly in his favour, but every issue decided against the plaintiff may operate as res judicata against him in a subsequent suit, for the plaintiff can appeal from a finding on such issue, the decree being against him.[see ill. (2)].

The Allahabad High Court has expressed a doubt whether the second branch of this rule applies to cases where the Court after disposing of the suit against the plaintiff on a preliminary point proceeds to record its findings against the plaintiff on other issues; in such a case, according to the Allahabad Court, the findings on the other issues do not operate as res judicata against the plaintiff in a subsequent suit.

Illustrations

  1. In a suit by A against B for ejectment, B contends that no notice to quit was given, and that the land being majhes land, he is not liable to be evicted at all. The suit is dismissed on the finding that no notice to quit was given. The Court, however, also finds that the land is not majhes land, but this finding does not find a place in the decree. A then sues B to evict him from the land after giving notice to B. B contend that the land is majhes land, and that he is not liable to be evicted. Does the finding in the first suit that the land was not majhes land operate as res judicata so as to preclude B from raising the same contention in the subsequent suit? No, for A’s suit having been dismissed, B could not have appealed from the finding that the land was not majhes land. The Court having found in the first suit that A had not given notice to quit it was not necessary to the determination of the suit whether the land was majhes land or not. The decree against A in the first suit was not based upon the finding that the land was not majhes land; on the other hand, it was made in spite of that finding; Thalcur Magundeo v. Thalcur Mahadeo61). Suppose that in the case put above, B had not raised the defence that the land was majhes land in the first suit. Would he be precluded from raising that defence in the second suit on the ground that he might and ought to have raised that defence in the first suit ? No ; the reason being that when a point of defence that has been actually raised and disallowed cannot operate as res judicata against a defendant, it certainly cannot operate as such when it has not been raised in fact, though it might and ought to have been raised.
  2. In a suit by A against B for damages for not removing certain offensive matter from A’s land, B contends that no notice was given as required by the Bengal Municipal Act, and that he was not bound to remove the filth from A’s land. The suit is dismissed upon two grounds : want of notice under the Act ; that B was not bound to remove the filth. A then sues B for damages for non-removal of the filth over section 11 a subsequent period after giving notice to B. B contends that he is not liable to remove the filth, and that the question of his liability is res judicata by reason of its having been decided against A in the first suit. A contends that the question is not res judicata for the Court having decided in the former suit that the suit must fail for want of notice, it was not necessary for the Court to decide the issue as to B's liability to remove the filth. Held by the Calcutta High Court that the question is res judicata, and A could not raise it again in the second suit : Peary v. Ambica62). The Allahabad High Court would seem to be of a different opinion; Shib Charan v. Baghu63)

Rule II

If the plaintiff’s suit is decreed in its entirety, no issue decided against the plaintiff can be res judicata, for the plaintiff cannot appeal from a finding on any such issue, the decree being wholly in his favour ; but every issue decided against the defendant is res judicata, for the defendant can appeal from a finding on such issue, the decree being against him.

Illustration. A alleging that he is the adopted son of X, sues B to recover certain property granted to him by X under a deed and forming part of the estate of X. The Court finds that A is not the adopted son of X, but that he is entitled to the property under the deed and a decree is passed for A. The finding that A is not the adopted son of X will not operate as res judicata in a subsequent suit between A and B in which the question of adoption is again put in issue ; for the decree being in favour of A could not have appealed from that finding. The Court having found that A was entitled to the property under the decree the finding on the question of adoption was not necessary to the determination of the suit. The decree, far from being based on the finding as to adoption, was made in spite of it: Rango v. Mudiyeppa64)

Rule III

Where a suit is

  1. for a declaration and
  2. consequential relief, and the decree grants the declaration but refuses the consequential relief on account of a technical flaw, the decree to the extent to which it grants the declaration operates as res judicata against the defendant, the reason given being that the defendant could have appealed from that part of the decree

Illustration. A, the manager of a temple, sues B for a declaration that a mulgeni lease granted by A’s predecessor to B is void and not binding on him, and that B being an annual tenant should be evicted. The defence is that the mulgeni lease is valid, and that no notice to quit having been given by A, B is not liable to eviction. A decree is passed

  1. declaring that the mulgeni lease is valid, and
  2. dismissing the rest of the plantiff’s suit for want of notice.

A then gives notice to B, and sues B for possession of the land. B contends that he holds the land under the mulgeni lease and that the lease is binding on A and that A is not therefore entitled to evict him. The question as to whether the lease is binding on A is res judicata, for the finding on that issue having been embodied in the decree B could have appealed from it; Mola v. Vithal65)

Finality of decree in redemption suits

There is a conflict of decisions whether a mortgagor, who has brought a suit for redemption and obtained a decree nisi under the provisions of the Transfer of Property Act, which neither the mortgagor nor the mortgagee has applied to be made absolute, can after the execution of that decree is time-barred bring a fresh suit for redemption, or whether such suit is barred by s. 11 or section 47 of the Code.

It has been held by a Full Bench of the Allahabad High Court and following it, by a Full Bench of the Bombay High Court, that the mortgagor can bring a fresh suit for redemption. On the other hand, it has been held by a Full Bench of the Madras High Court, that the second suit is barred. As regards the High Court of Calcutta, it was held in the that the second suit would not be barred, while in a later case it was held that the second suit would be barred. It has been held by the High Court of Bombay that where a mortgagee obtains a preliminary decree for sale, but does not apply for an order absolute for sale within the period prescribed by the decree, nor is any step taken by the mortgagor to redeem the property, the mortgagor is not precluded from bringing a suit for redemption of the mortgage. According to the Madras High Court, he is precluded by the provisions of the present section from bringing such a suit.

Regard must be had to appellate decree

Where a decree is appealed from, it is the appellate decree to which regard must be had to determine whether a matter is res judicata, and not the decree appealed from.

A decision liable to appeal may be “ final ” within the meaning of this section until the appeal is made. But once the appeal is made the decision loses its character of “finality,” and what was once res judicata again becomes res sub judice (matter under judicial enquiry). The appeal destroys the finality of the decision, the decree of the lower Court is superseded by the decree of the Court of Appeal, and it is the latter decree that should be looked to, to determine the question of res judicata.

A sues B for damages for cutting and removing certain trees on his land. The suit is dismissed on the grounds that the land did not belong to A, and that B did not cut the trees. A appeals from the decree on both these grounds, but the appeal is dismissed on the ground that A had failed to prove that B had cut the trees. Note that the appellate Court does not decide the question of A’s title. A then sues B for possession of the land, claiming that the land belongs to him. B contends that the suit is barred as res judicata it having been found by the first Court in the former suit that the land did not belong to A, The suit is not barred, for the question of A’s title became res sub judice when the appeal was made, and it did not become res judicata as the appellate Court did not adjudicate upon that question. But a judgment of an appellate Court will operate as res judicata as regards all findings of the lower Court which, though not referred to in it, are necessary to make the appellate decree possible only on such findings.

The present section does not apply in terms to consent decrees ; for it cannot be said in the case of such decrees that the matters in issue between the parties “have been heard and finally decided” within the meaning of this section. A consent decree, however, has to all intents and purposes, the same effect as res judicata as a decree passed in invitum. It raises an estoppel as much as a decree passed. So long, therefore, as a consent decree stands, it is not open to either party thereto to give the go bye to it, even if it contains clauses that are bad in law. A consent decree, however, is a mere creature of the agreement on which it is founded, and it may be set aside on any ground which would invalidate an agreement between the parties. But unless all the parties agree, an application cannot be made to the Court of first instance in the original suit to set aside the judgment or order except, apparently, in the case of an interlocutory order.

Explanation V: relief claimed but not expressly Granted

If a relief is claimed in a suit, but it is not expressly granted in the decree, it will be deemed to have been refused, and the matter in respect of which the relief is claimed will be res judicata. Thus where in a suit by a mortgagee against his mortgagor (1) for a money decree, and, in default of payment, (2) for sale of the mortgaged property, the mortgagee was content to take a money-decree only, it was held that a subsequent suit by him, on failure of the mortgagor to satisfy the decree, to have the amount of the mortgage-debt paid to him by the sale of the property, was barred as res judicata. The relief as to sale having been claimed by the mortgagee, but not having been expressly granted in the former suit, must be deemed to have been refused so as to bar the subsequent suit. It is different, however, where there is no relief claimed for sale in the former suit. It sometimes happens that a suit brought in a particular form is dismissed “ in the form in which it is brought”, that is to say, it ought to have been brought in another form, and it is dismissed because it is not brought in that form. In such a case, if the adjudication was arrived at on the merits of the case, the decree dismissing the suit will bar a fresh suit in respect of the same matter, though the decree may provide that the plaintiff may institute a fresh suit in propper form, the reason is that the Court has no power under the Code to include a reservation of this kind in a decree of dismissal. But if the adjudication was not arrived at on merits of the case a fresh suit in respect of the same matter would not be barred. The provisions of this Explanation do not apply, unless the “ relief ” claimed was substantial relief, and it was such as it is obligatory on a Court to grant.

The relief claimed must have been substantial, not auxiliary. A sues B to recover her share in the estate of D, claiming the same as D’s widow, and for a declaration that she was lawfully married to D, a fact which B had denied. A decree is made by consent awarding Rs. 65,000 to A in full satisfaction of her claim against the estate of D. The decree does not contain any declaration as to A’s marriage with D. This circumstance will not bar a subsequent suit by A as D’s widow against B,to recover her share in the estate of a deceased relative ; for the relief claimed in the former suit in respect of the legality of marriage was not claimed as a “specific ” or “substantial” relief, but it was “ auxiliary ” to the principal relief as to her share in the estate of D.

The relief claimed must have been one which the Court is bound to grant, and not one which it is discretionary with the Court to grant. Thus a relief as to mesne profits subsequent to the date of the suit is one which it is not obligatory on the Court to grant. Therefore, if a suit is brought for possession and for past and future mesne profits, and the Court gives a decree for mesne profits down to the date of suit, but says nothing about subsequent mesne profits, the relief as to subsequent mesne profits will not be deemed to have been refused, and a fresh suit in respect thereof will not be barred. But it is otherwise as to mesne profits accrued due prior to the date of the suit . As stated by Wallis, C.J., in a Madras Full Bench case, “ the word ‘ relief ’ in the Explanation means relief arising out of a cause of action which bad accrued at the date of suit and on which the suit was brought, and [does] not include relief such as mesne profits accruing after the date of suit as to which no cause of action had then arisen, but which the Court was nevertheless expressly empowered to grant ” [see O. 20, r. 12].

A relief claimed in a suit will not be deemed to have been “refused” if the Court which decided the suit refused to adjudicate upon the relief claimed, and suggested to the plaintiff that he should bring a fresh suit in respect of that relief. In such a case a fresh suit in respect of such relief will not be barred. “ It would be idle to expect that a Court, which had judicially advised the second suit, should punish a plaintiff with dismissal of his suit for simply acting on the Court’s advice ”.

Orders in execution proceedings and interlocutory orders

A applies for execution of a decree obtained by him against B. The application is rejected on the ground that it is time-barred. A then makes a fresh application for execution of the same decree. The rejection of the first application is a bar to the trial of the second, not under s. 11 of the Code, for the former application is not a “former suit“ within the meaning of that section, but upon general principles of law. These principles are analogous to the principles of res judicata. In other words the principle of law underlying this section applies to proceedings in the execution of decrees. Hence the matters directly and substantially in issue in both the applications must be the same, either actually or constructively. Thus where an order is made for attachment of the properties of a judgment-debtor after notice to him to show cause why the order should not be executed against him, the judgment-debtor is estopped from pleading in a subsequent application for execution that execution of the decree had been barred by limitation at the date of the order, even though the order passed may be an ex parte order. Also, the parties in the subsequent proceeding must have been parties to the former proceeding, and must have litigated under the same title. Further, the former application must have been heard and finally decided, and the decision must have been necessary to the determination of that application; therefore, the mere fact that an application for execution of a decree has been dismissed for default does not debar a subsequent application. But the principle of Explanation IV does not apply as regards the amount for which the decree is sought to bo executed ; thus if a judgment debtor does not take exception to the amount erroneously set forth in the application for execution of the decree, he is not precluded from objecting to it on a subsequent application for execution. Nor does the principle of Explanation V, namely, that where a relief claimed in the plaint is not expressly granted it will be deemed to have been refused, apply to applications in execution of decrees. When a decree has once been construed by a Court executing the decree, the construction is binding on the parties in subsequent proceedings in execution. Thus where a Court executing a decree decided in the course of execution proceedings that the decree according to its true construction did award mesne profits, it was held that this decision, not having been appealed from, became final between the parties.

Applications for amendment of decree

Though an application for amendment of a decree is not a “ suit ” within the meaning of this section, yet if such an application is heard and finally decided, it will debar a subsequent application for the same purpose upon general principles of law analogous to those of res judicata.

Applications for review

Where an application is made for a review of judgment, and the application is refused, it does not operate as res judicata so as to bar a subsequent suit for the same relief and on the same grounds as those put forward in the application for review. Neither s. 11 nor any doctrine of constructive res judicata can rightly be applied to such a cese.

Estoppel against a statute

There is no estoppel against an Act of Parliament or in this country against an Act of the Legislature. Whether the bar of res judicata applies to defeat a statutory provision? It is submitted that it does not.

Res Judicata and Stare Decisis

“Res judicata” means “a thing adjudicated”: “a case already decided”: or “a matter settled by a decision or judgment”. “Stare Decisis” means “to stand by decided cases”, “to uphold precedents”, “to maintain former adjudications”, or “not to disturb settled law”, “Those things which have been so often adjudicated ought to rest in peace”. Res judicata binds parties and privies from taking a contrary view on the point of law already decided. Res judicata relates to a specific controversy, stare decisis touches legal principle. Res judicata presupposes judicial finding upon the same facts as involved in subsequent litigation between the same parties. Stare decisis applies to same principle of law to all parties.

Waiver

The plea of res judicata is not one which affects the jurisdiction of the court. The doctrine of res judicata belongs to the domain of procedure and the party may waive the plea of res judicata. Similarly, the court may decline to go into the question of res judicata on the ground that it has not been properly raised in the proceedings on in issues. The plea is one which could be waived.

Exceptions to Res Judicata

In Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar66) the Supreme Court laid down 3 exceptions to the rule of Res Judicata:

  1. When judgment is passed without jurisdiction.
  2. When matter involves a pure question of law.
  3. When judgment has been obtained by committing fraud on the Court.

Judiciary Mains Question Answers

Q. Res judicata is sometimes treated as part of the doctrine of estoppel but the two are essentially different. Explain and point out the difference between the two.

Ans. The doctrine of res judicata is often treated as a branch of law of estoppel. Res judicata is really estoppel by verdict or estoppel by judgment (record). The rule of constructive res judicata is nothing else but a rule of estoppel. Even then, the doctrine of res judicata differs in essential particulars from the doctrine of estoppel.

  1. the rule of res judicata is based on public policy, viz. that there should be an end to litigation. Estoppel, on the other hand, proceeds upon the doctrine of equity, that he who, by his conduct, has induced another to alter his position to his disadvantage, cannot turn round and take advantage of such alteration of the other's position.
  2. Res judicata ousts the jurisdiction of the Court to try the case and precludes an enquiry in limine (at the threshold); estoppel is only a rule of evidence and shuts the mouth of a party.
  3. Res judicata results from a decision of the Court, whereas estoppel flows from the acts of parties.
  4. The rule of res judicata presumes conclusively the truth of the decision in the former suit, while the rule of estoppel prevents a party from denying what he has once called the truth.
  5. Res judicata prohibits a man averring the same thing twice in successive litigations, while estoppel prevents him from saying one thing at one time and the opposite at another.
1) , 2)
Ins. by Act 104 of 1976, sec. 6 w.e.f. 1-2-1977
3)
See:Dr. Subramanian Swamy v. State of Tamil Nadu & Ors 2014 (1) SCALE 79
4)
AIR 1960 SC 941
5)
AIR 1977 SC 1268
6)
AIR 2005 SC 2392
7)
see O. 1, r. 10(2) and Code of 1882, s. 32
8)
See 0. 20, rr. 5 and 6 (Code of 1882, ss. 204 and 206).
9)
sec O. 1, r. 10
10)
Toponidhee v. Sree- putty (1880) 5 Cal. 832.
11)
Run Bahadur v. Lucho Koer (1886) 11 Cal. 301, 12 I.A. 23 ; Srihari v. Khitisk Chandara (1897) 24 Cal. 569
12)
Rakhal Doss v. Heera (1874) 22 W. R. 282 ; Venkatachalapati v. Krishna (1890) 13 Mad. 287 ; Vishnu v. Ramling (1902) 26 Bom. 25 ; Natesa v. Venkatarama (1907) 30 Mad. 610 ; Dwarka Das v. Akhay Singh (1908) 30 All. 470.
13)
see O. 9, r. 6
14)
Madhusudun v. Brae (1889) 16 Cal. 300
15)
Ram Saran v. Chatar Singh (1901) 23 All. 465.
16)
Keshavalal v. Parvati (1894) 18 Bom. 327
17)
Explanation IV
18)
2008 10 SCC 187
19)
2008 6 SCC 789
20) , 25)
1901 25 Bom. 189
21)
1903 26 Mad 760
22)
1908 31 Mad. 385
23)
Srimut Rajah v. Katama Natchiar (1866) 11 M. I. A. 50; Doorga Persad v. Doorga Konwari (1879) 4 Cal. 190, 5 I. A. 149.
24)
Masilamania v. Thiruvengadam (1908) 31 Mad. 385.
26)
1908, 31 Mad. 385
27)
1877 2 Cal 152
28)
1882 4 Mad 308
29)
1893 20 Cal. 79, 19 I. A. 234
30)
1898 21 Mad. 278
31)
1890 14 Bom.31
32)
1899 22 Mad. 323
33)
1900 23 Mad, 629
34)
1886 9 Mad. 251
35)
1882 4 Mad. 308
36)
1884 8 Bom. 174.
37)
1866 11 M. I. A. 60
38)
1879 4 Cal. 190, 5 I, A. 149
39)
1904 31 Cal. 79.
40)
1859 16 Cal. 682, 16 I.A. 107.
41)
1904 26 All. 61.
42)
1881 5 Bom. 27
43)
1881 5 Bom. 689
44)
1886 10 Bom. 24
45)
1878 3 Cal. 23.
46)
Watson V. Dhonendra (1878) 3 Cal. 6.
47)
1888 15 Cal. 800, 15 1.A. 106
48)
1903 26 Mad. 760
49)
1904 27 Mad. 102
50)
1905) 28 Mad. 406
51)
1906 29 Mad. 153
52)
1907 12 C. W. N. 292
53)
1910 33 All. 302.
54)
1911 35 Bom. 507.
55)
1884 10 Cal. 1087
56)
1905 32 Cal. 749.
57)
1898 22 Bom. 669.
58)
1907 30 Mad. 185, 34 I. A. 93.
59)
1911 33 All. 493
60)
1914 30 All. 424
61)
1891 18 Cal. 647; Nundo v. Bidhoo (1886) 13 Cal. 17
62)
1897 24 Cal. 900
63)
1895 17 All. 174, 195
64)
1899 23 Bom. 296
65)
1916 40 Bom. 662.
66)
2008 9 SCC 54